How to bring your e-shop into line with economic regulations

Launching an e-commerce site is good. Making sure it complies with economic regulations is better. What is the process? This article outlines the key aspects you need to check to ensure that your online shop complies with current regulations.

Having a compliant e-shop does not mean "having terms and conditions"!

There are several steps involved in selling online and creating an e-commerce site: drawing up a graphic charter, defining your sales arguments, creating product sheets, setting up your order funnel and payment methods, etc.

And it is often at the very end of the e-shop creation process that the project manager says, "Ah the seller should get, now the site has to be compliant!" Sometimes, the legal pages are not even filled in when the site goes live.

There is a popular belief that "having terms and conditions" is the necessary and sufficient condition for regulatory compliance. And yet... in Belgium, there is no obligation to have terms and conditions!

This means a site is not officially illegal if it does not have them. And publishing terms and conditions is not enough for the site to be in order.

How to make sure your e-shop is compliant

What must be done to ensure compliance if terms and conditions are not required?

Damien Jacob, lecturer and trainer at EPHEC Brussels, HEC-ULiège and the Faculty of Law at the University of Strasbourg, explains. He also offers feedback from his work at Retis.be, a consultancy specialising in e-commerce support for self-employed people and companies in all sectors.

Four main aspects must be checked to be compliant in Belgium:

The presence of complete seller information

1. The presence of complete product sheet information
2. A compliant process for the online ordering funnel
3. An after-sales service process

Step 1: The legal notice

All professionals present online, even if they do not sell online, must specify:

• Their real identity
  • first name and surname if practising as a natural person, or surname and legal status (e.g. SRL) if practising as a legal entity,
  • VAT number,
  • company number (although the two identifiers are almost the same in Belgium, except for 'BE' if the VAT number is intra-community, as this is a harmonised European requirement);
• Their contact details:
  • unencrypted email, i.e. so the company can be contacted not just via a contact form, unless this form enables the sender to keep a record of the email sent,
  • telephone number (unless the company does not have one),
  • any other contact channels (e.g. fax).
• The existence of any compulsory accreditations in the sector, as well as any ethical obligations or commitments and, where applicable, contact details for the regulatory body (e.g. the Ordre des Pharmaciens).

This information is often indicated on a "Legal Notice" or "About us" page, accessible via a link in the website footer. It must be accessible from any page on the website, and, as people often forget, must also be accessible from the company's profile on social networks.

This point in the regulations generates the greatest number of "warnings" (regularisation requests) during inspections carried out by FPS Economy. Failing to give this information in court can harm the plaintiff's case, possibly leading to a higher penalty for a seller even if they are responsible for something else.

For additional details, visit the Retis website (FR). 

Step 2: Offer presentation sheets

The consumer must be fully able to judge the offer presented. The sensory experience of a product normally seen in a shop (sight, touch, smell, taste) is impossible with digital technology. The seller must therefore provide information and a product description that is as complete as possible.

This means that anything the customer might have known at a physical point of sale, even without the services of a sales assistant (for example, the characteristics indicated on a packaging box or label), must be mentioned on the product data sheet.

The consumer must also be informed on the product sheet (or via a clickable link) of:

• the delivery options,
• the accepted payment methods,
• the after-sales service (withdrawal, process in the event of an order not being honoured or correctly honoured, legal and contractual warranties),
• any contractual obligations (e.g. duration, options),
• and, very importantly, the total inclusive price, i.e. including taxes and, where applicable, delivery costs (if these cannot be calculated automatically, the consumer should be able to access a table directly from the product data sheet, where they can determine the delivery cost depending on the destination country, for example).

All without having to create a customer account on the website.

Step 3: Order funnel compliance

A series of elements, imposed by the European Distance Selling Consumer Protection Regulations 2014, govern the consumer basket validation stage:

• the steps in the ordering process must be clear to the consumer at all times;
• it is forbidden to add pre-checked paying options during the purchasing journey (these options can be suggested, but can only be added to the basket if the buyer has explicitly agreed to them);
• it is mandatory to display an order summary when the seller wants the buyer to make a firm commitment. This is a list of the items in the basket (with the information needed to avoid confusion with another offer), recalling the total all-inclusive price and the related sales conditions (withdrawal terms, minimum contract duration). It must be possible to modify quantities, delete, or go back to the step where these changes can be made;
• the seller must be able to separately approve the privacy policy (following GDPR obligations) and any terms and conditions (available in the same language as the order, fully storable and printable). Proof of acceptance is the seller's responsibility, so it is recommended that they are validated by the explicit ticking of a box (e.g. "I confirm that I have read and accepted the Terms and Conditions"), to make them enforceable.
• last but not least, for the order to be firm, there must be a button for signing the order form (different from the button for validating the payment method). The regulations require this button to include the words "order with payment obligation", or another unambiguous wording indicating that placing the order involves a requirement to pay the company. The terms "pay now", "order and pay", "confirm purchase", "buy now" are generally considered valid. But "next", "confirm", "order", "reserve", "close", etc. are not compliant because they do not include the notion of payment. If this point is not respected, the regulations provide for a civil penalty which considers that the seller is bound by the contract concluded, but that the consumer is not bound by the order (and therefore not obliged to pay).

Step 4: Post-ordering process

Once the online order has been placed, the seller still has legal obligations to respect; in particular, they must "send an acknowledgement of receipt" (different from the invoice), which is a sort of duplicate order form.

This is often done automatically by the e-commerce platform. But it must include some important elements to be verified by the seller:

• a reminder of the existence (or otherwise) of a right of withdrawal,
• the link to the withdrawal form and the terms and conditions,
• a reference number to facilitate contact with the after-sales service (recommended, but not mandatory).

The seller must also allow the buyer to keep this acknowledgement on a durable medium, for example, by including a "print this page and send this order confirmation by email" button.

The right of withdrawal in e-commerce

For distance purchases, a right of withdrawal is provided for by the 2014 European Regulation. The aim is to protect online consumers who may not have had the opportunity to fully understand the offer, by allowing them to cancel their purchase after the fact.

This is a legal right in BtoC, not a commercial gesture, applicable in all cases (with 14 very specific exceptions, which we will discuss below). It is therefore an obligation for the seller.

The cooling-off period cannot be less than 14 days from the date on which the buyer receives the goods (and not from the date of the order, except in the case of a service ordered online).

From a practical point of view, the regulations oblige the seller to proactively signal this right of withdrawal and provide full information, including a standard form (otherwise the period is extended by 12 months and the consumer is not liable for any depreciation of the item). However, consumers may exercise their right by other means if they so wish (email, post, online form, etc.). Furthermore, the consumer does not have to give a reason for exercising this right.

If the purchase is refunded, the rules are also specified by the regulations:

• the order and the standard delivery costs must be refunded within 14 days of the exercising of the right of withdrawal, and the consumer must return the product within the same period.
• refunds may be postponed until proof of return has been received (if stipulated in the contract/Terms and Conditions), but not beyond 14 days.
• refunds (by the same payment method used for the purchase, unless the customer agrees) must be the first choice offered, before any suggestion of a voucher.
• the cost of returning the goods may be borne by the customer, as may any damage resulting from the handling of the goods (other than that necessary to establish the nature, characteristics and proper functioning of the goods), if this is clearly stipulated in the contract.

Of the 14 exceptions to the right of withdrawal that the legislator has explicitly authorised, the most frequent are:

• service contracts (after the service has been fully performed),
• the reservation of services (transport tickets, tickets for shows and attractions, booking of accommodation, car rental, etc.) if the contract specifies a specific date or period of performance,
• the supply of goods made to the consumer's specifications or personalised,
• the supply of goods likely to deteriorate or expire rapidly,
• the supply of sealed goods that cannot be returned for health or hygiene reasons and which have been unsealed by the consumer after delivery (medicines, cosmetics, etc.).

For more information on exceptions (FR).

To go further on the question of what can and cannot be returned to the seller, case law has already ruled on several specific items, for example, an online seller cannot refuse the return of a mattress and, by analogy, a swimsuit.

The right of withdrawal also applies to professional sellers for products on sale or second-hand products.

On the other hand, the seller may state in the Terms and Conditions that the right of withdrawal does not apply to purchases made by a professional.

The Terms and Conditions

As mentioned above, it is not compulsory in Belgium to publish Terms and Conditions on an e-shop (even though, we remind you, all the information obligations explained above must be respected, and often the simplest way of doing so is to include the after-sales service provisions in the T&Cs, for example) However, they are highly recommended.

They govern contractual relations in a standardised way, and in practice serve to protect the seller, but within the limits permitted by the regulations, provided that they have been explicitly accepted by the buyer and that the clauses included are valid and not abusive.

For example, there is no point stating that the consumer cannot withdraw after seven days from the order date, excluding liability for published texts and illustrations, or excluding liability for delivery problems.

Clauses that are contrary to the regulations or create a disproportionate imbalance with the buyer are unlikely to be taken into consideration in court.

How do you write your Terms and Conditions?

Most of the "royalty-free" T&Cs on the market only reproduce the terms of the law (because copyright does not apply there), sometimes even the law of another country, and are therefore superfluous. It is therefore advisable for clauses to take into account the sector of activity, as well as the approach and how the online retailer wants to manage its customer service.

You should also be careful not to copy T&Cs from another e-shop without consent (this would be an infringement of copyright, and the situation would be even worse if it were a competitor, since it would be an act of economic parasitism).

Further information

Although great care has been taken in the preparation of this article, it is not possible to cover every aspect of e-commerce regulations in depth here. Several simplifications have also been made to make reading more accessible and educational.

Here are a few useful links to help you find out more:

• The "publications" section of the website of e-commerce consultancy Retis (FR). Retis, along with several law firms, can provide personalised advice and support regarding compliance to companies wanting to sell online.
• The FPS Economy website www.infoshopping.be provides an educational illustration of these regulations by applying them to a fictitious e-shop. Guidelines (FR) are also available.
• The TechnofuturTIC training organisation offers online training on economic regulations in e-commerce (FR). It is available to jobseekers free of charge 
• Bruxelles Formation offers e-commerce training for jobseekers, including regulations 
• In addition to the regulatory aspects, practical information sheets on how to start selling online can be consulted at https://www.lancezvotreentrepriseenligne.be.
• on this site, we also published ten tips before starting an online store, as well as a fact sheet specifically for e-commerce to the UK. 

Damien Jacob, Retis, June 2024